In order to clearly understand what Hannah Arendt wants to convey the interrelation between power and law, it is important to clarify what the separation of powers are. “Separation of powers” is regarded as a model to govern the state and it is the vital sphere of government. In addition, separation of powers can be referred as the main institutions of state which has functioned autonomously and no one or any institutions are able to have power over these institutions. According to the doctrine of Separation of powers, it can be divided into three branches – the executive, the legislature, and the judiciary- where each branch has separable and independent powers from each other , therefore, one of the power of these three branches cannot
Spanking is enforceable by law. Law is the command of the sovereign. If you disobey the law the in-charge can be punish as he want to. On Austin 's view, a rule R is legally valid i.e., is a law in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a sanction. Whatever the sovereign command is law, and law prescribes to do certain things and not to do others.
In a constitutional supremacy, parliament is not omnipotent. Its powers are constrained by the constitution. In most constitutional democracies, if a citizen believes that a certain law violates a certain provision in the constitution, she can file an action in a court of law. Courts have the power of judicial review on the constitutionality of legislation. If the court finds that the law does indeed violate the constitution, it can strike the law
It tries to undo the harm that is advertently (or inadvertently) done by the actions of legislature and the executive and also tries to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy. All this is possible due to the power of judicial review. The significance of judicial review is to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. Though the phrase ‘judicial review’ does not find mention in our Constitution, this power has been derived by the judiciary from various provisions. Firstly, the judicial power to interpret the constitution and especially the limits on Fundamental Rights vis-à-vis Article 13(2) suggests that any law contravening the Fundamental Rights would be declared void.
Montesquieu found that concentration of theory with single person or in hands of few people results in tyrannical form of government. To avoid the conflicts Montesquieu suggested that there should be proper division of power among three organs of government i.e. legislature, executive and judiciary. Legislature enacts laws, Executive enforces the law and judiciary interprets them and settles the disputes. Thus, Montesquieu propounded the theory and held that each organ of the state should be confined to its own sphere as there should not be overlapping of jurisdiction of the organs of the state.
Substantive law regulates individual and/or government agencies. (Surbhi, 2017) Third, procedural law creates the apparatuses for enforcing laws. Substantive law “sates the rights and obligations of the citizens.” (Surbhi, 2017) Fourth, procedural law can be applied to either legal or non-legal matters. Whereas substantive law cannot go toward non-legal matters. (Surbhi, 2017) Fifth, procedural law is regulated by statutory laws and substantive law is a governed law.
predominance of legal spirit (i) Supremacy of law: Explaining the first principle, Dicey states that rule of law means absolute supremacy or predominance of regular law as opposed to arbitrary powers or wide discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide discretionary authority on part of the Government. According to him English men were ruled by the law and by the law alone. The rule of law banning of rule of judge, in matters pertaining to a person or a nation. it is so imperative that the reign of law should not be reduced to anarchy by willfully lawless
According to the rule of law, courts are better protector of individual liberty. Courts adjudicate dispute and exercise check and balance on the executive. Hence, judiciary independence is the heart of democratic system which earns the confidence of public. While there lacks a written constitution safeguarding judicial independence, the court is protected by various ways such as statute , parliamentary protection and common law. The maxim nemo Judex in causa sua state that no one shall be the judge of his own cause provides the rules against bias.
The separation of powers doctrine recognises that the judicial arm must remain separate from the executive and legislative arms of government. The Separation of powers doctrine was developed so that the three arms of government are able to provide checks and balances on other arms which prevent an abuse of power. Each power having different responsibilities enables each arm of government to keep a check on the action of others. The Judiciary can strike down any laws being made by the legislature if they are unlawful, thus successfully providing a check on the legislature branch. Executive actions can also be deemed as unlawful by the judiciary.
Separation of powers refers to the theory where the government is divided into three separate branches of government in order to preserve liberty through limiting government’s power. These three branches consist of the Legislature, Executive and Judiciary. For the Executive, it carries out the laws that are being regulated and as such, if an individual breaks the laws, the Executive will also carry out the punishment that arise from the violation of the law. As for the Legislature, it aids the law-making process and it involves three readings in Parliament and President’s assent before the bill can be part of the law in Singapore. Figure 1: Law-making process As seen in Figure 1, under the “Scrutiny by the Presidential Council for Minority Rights”, the bills will be revised in order